G.P. Singh, C.J.
1. This is a reference made by the Income-tax Appellate Tribunal referring for our answer the following question of law:
'Whether, on the facts and circumstances of the case, the Appellate Tribunal was justified in holding that the assessee had concealed the income as the same was not included in the returns filed by the assessee and thereby confirming the imposition of penalty under Section 271(1)(c) of the Act ?'
2. The relevant assessment year is 1972-73. The assessee during the the previous year relevant to the assessment year derived share income from three firms, namely, (1) M/s. Bhimandas & Co., Bhopal, (2) M/s. Karamchand & Bros., Bhopal, and (3) M/s. Moti Construction Co , Ahmedabad. The assessee also derived income of Rs. 300 from house property. On 20th August, 1972, the assessee filed a return through hisrepresentative, Shri P. B. Sharma, Chartered Accountant. In this return the assessee's income was declared at Rs, 3,432 consisting of income from house property of Rs. 300 and income of Rs. 3,123 as share income from the firm, M/s. Bhimandas & Co. On 30th August, 1972, another return was filed by the assessee through his representative, Shri B. M. Vasanta, in which the share income from the firm, M/s. Karamchand & Bros., was shown. In this return the income from the firm, M/s. Bhimandas & Co. was not shown. The ITO by his letter dated 23rd December, 1972, informed the assessee that it was found that he was a partner in M/s. Karamchand & Bros, the assessment of which had been completed and that he did not show the share income in the return filed by him. The ITO called upon the assessee to explain why the share income from that firm be not included and why action for imposition of penalty may not be taken. The assessee in his reply stated that he forgot by oversight to inform his counsel, Shri Sharma, about the share of profits from M/s. Karamchand & Bros. It was also stated that the case of the firm, M/s. Karamchand & Bros., was dealt with by another counsel, Shri B.M. Vasanta, Advocate, who filed the second return on 30th August, 1972, in which the share income from that firm was shown. The assessee submitted that as two different counsel were dealing with the two firms, there was an inadvertent omission in disclosing in the first return the share income from the firm, M/s. Karamchand & Bros. A revised return was also filed on 1st January, 1973, in which the income from the two firms, M/s. Bhimandas & Co. and M/s. Karamchand & Bros., was shown. As regards the income from M/s. Moti Construction Co., it was stated that the return was subject to adjustment in respect of share of profit or loss from M/s. Moti Construction Co., intimation of which had not been received till then. The ITO levied a penalty of Rs. 11,471 on the assessee for non-inclusion of the share income of M/s Karamchand & Bros, under Section 271(1)(c). In appeal, the AAC reduced the penalty to Rs. 6,503. The assessee and the Department both went up in appeal to the Tribunal which dismissed the appeal filed by the assessee and allowed the appeal of the Department.
3. We have earlier stated that the assessee was penalized for concealing the share income from the firm, M/s. Karamchand & Bros. The fact that the assessee through Shri Vasanta had filed a return on 30th August, 1972, i.e., two days after the first return in which the share income from this firm was shown, was urged before the Tribunal. The fact of filing this return was accepted by the Tribunal as is clear from the finding reached in para. 13 of the order. Now when the assessee two days after the filing of the first return filed another return through another counsel showing the income, from the firm of M/s. Karamchand & Bros, it is apparent that there was no intention to conceal the income and the omissionin the first return of the share income from M/s. Karamchand & Bros, was for the reason that two different persons dealt with the cases of these two firms on behalf of the assessee. The Tribunal, in reaching its conclusion that there was an intention to conceal the particulars of income, has omitted to consider this very important fact that the income said to be concealed was actually disclosed within two days from the date of the filing of the first return. The Tribunal has laid great stress on the fact that the share income from M/s. Moti Construction Co. was not shown in either of these returns. It is, however, clear and it was also accepted by the Tribunal that the assessee was not penalized for concealing the income from M/s. Moti Construction Co. The penalty was imposed only for not disclosing the income from the firm, M/s, Karamchand & Bros. The Tribunal's finding that there was concealment of the particulars of the share income from this firm is entirely perverse.
4. For the reasons given above, we answer the question as follows ;
'On the facts and circumstances of the case, the Appellate Tribunal was not justified in holding that the assessee had concealed the particulars of income and in confirming the imposition of penalty under Section 271(1)(c).'
5. There shall be no order as to costs of this reference.